OffshorePatents
Patent Protection on the High Seas
No state has the right to extend its sovereignty to the high seas or parts thereof; legally speaking, the high seas are extraterritorial. The freedom of the high seas and the right of navigation on the high seas, as well as legal and behavioural norms on the high seas, are regulated in Part VII of the UN Convention on the Law of the Sea (UNCLOS). Consequently, no national law and particularly no patent law of any state applies on the high seas, except for the universal jurisdiction of some states.
Patent Protection in Coastal Waters
The coastal waters, also known as territorial sea, a strip of sea adjacent to the mainland and extending as far as the territorial heights of the land, are under the sovereignty of a coastal state. The costal waters belong to the national territory and thus to the sovereign territory of the coastal state, which consequently has sovereign rights here and can enact and enforce laws including its patent law. This state sovereignty of the coastal state also extends to the airspace above the coastal waters, the seabed and the subsoil of the coastal waters.
Patent Protection in the EEZ
The maritime area lying above the part of the mainland continental shelf belonging to a coastal state can be claimed by the coastal state for the state itself as an Exclusive Economic Zone (EEZ); the EEZ of a coastal state thus defines a marine area beyond the territorial sea, and thus outside the coastal waters, adjacent to the coastline. The illustration shows the location and extent of the EEZ (in German: AWZ) of the Federal Republic of Germany with its borders to DK, NL and GB; the dash-dotted line marks the borders of the coastal waters.
The exclusive economic zone (EEZ) in the sea in front of a coastal state does not belong to the state territory of that coastal state; consequently, the patent law of the coastal state does not automatically apply here. The coastal state has only sovereign rights and powers in the EEZ, which, however, allow it to extend its patent law to certain facts in the EEZ. This has not yet been done in Germany.
For the protection of inventions that can be used in the EEZ and that can also be used on the high seas or the seabed there, the special legal features must therefore be taken into account when drafting the patent application. For example, it may make sense to formulate claims in a patent category that is directed to the protection of a later product that will have to leave the extraterritorial area sooner or later.
Dr. Wolfram Schlimme has published on the subject of patent protection in the exclusive economic zone (in German):
